Chapter 1

Introduction and background

Referral of the Inquiry

1.1
On 12 September 2016, the Senate referred the following matter to the
Senate Legal and Constitutional Affairs References Committee (the committee)
for inquiry and report by the final sitting day of March 2017: serious
allegations of abuse,
self-harm and neglect of asylum seekers in relation to the Nauru Regional
Processing Centre, and any like allegations in relation to the Manus Regional
Processing Centre.

1.2
The terms of reference in this matter are:

(a) the factors that have contributed
to the abuse and self-harm alleged to have occurred;
(b) how notifications of abuse and
self-harm are investigated;
(c) the obligations of the
Commonwealth Government and contractors relating to the treatment of asylum seekers,
including the provision of support, capability and capacity building to local
Nauruan authorities;
(d) the provision of support services
for asylum seekers who have been alleged or been found to have been subject to
abuse, neglect or self-harm in the Centres or within the community while
residing in Nauru;
(e) the role an independent children's
advocate could play in ensuring the rights and interests of unaccompanied
minors are protected;
(f) the effect of Part 6 of the
Australian Border Force Act 2015;
(g) attempts by the Commonwealth
Government to negotiate third country resettlement of asylum seekers and
refugees;
(h) additional measures that could be
implemented to expedite third country resettlement of asylum seekers and
refugees within the Centres;
(i) any other related matters; and
(2) the committee be granted access to
all inquiry submissions and documents of the preceding committee relating to
its inquiry into the conditions and treatment of asylum seekers and refugees at
the regional processing centres in the Republic of Nauru and Papua New Guinea.[1]

1.3
On 20 March 2017, the Senate granted an extension of time to report
until
21 April 2017.[2]

Conduct of the inquiry

1.4
In accordance with usual practice, the committee advertised the inquiry
on its website, and also wrote to various organisations and individuals
inviting written submissions. The committee requested that submissions be
provided by 7 November 2016 but accepted a number of submissions after this
date.

1.5
The committee received 61 submissions, some of which were accepted as
wholly or partially confidential. A list of submissions received is at Appendix
1.

1.6
The committee held six public hearings and heard from a number of
witnesses:

11 November 2016 in Canberra;

15 November 2016 in Melbourne;

8 February 2017 in Canberra;

14 March 2017 in Brisbane;

15 March 2017 in Canberra; and

20 March 2017 in Canberra.

1.7
References to Hansard transcripts are to the proof transcript. Page
numbers may vary between the proof and the official transcript.

1.8
In the course of this inquiry the committee had access to all evidence taken
by the committee during previous inquiries into these matters. The committee
also had access to all evidence published by other committees inquiring into
related matters. These inquiries are discussed in further detail in this
Chapter.

1.9
The committee encountered some difficulties taking evidence during this
inquiry. These difficulties arose because the committee was charged with inquiring
into matters taking place outside Australian territory. A committee cannot
travel outside Australia's jurisdiction to take evidence, as it cannot formally
meet as a committee outside Australia. The committee was unable to visit the
RPCs, make an assessment as to the facilities, or meet with individuals who are
directly affected by these matters. Many individuals who may have provided
primary evidence would not have been able to do so with the protection of
parliamentary privilege. Parliamentary privilege does not extend to people
located outside Australia. Some RPC workers may have risked prosecution under
Australian law by providing evidence. The application of Australian laws to RPC
workers will be discussed in Chapter 4.

1.10
The committee thanks the individuals and organisations who gave evidence
during this inquiry, especially those who bravely gave evidence in camera. Many
had already given evidence to a previous inquiry into related matters. The
committee recognises that the inquiry deals with sensitive issues, and thanks
witnesses and submitters for continuing to engage with the inquiry process.

A note on terminology

1.11
A range of terms have been employed to describe the people living in the
Republic of Nauru (Nauru) and Papua New Guinea (PNG) after having sought asylum
in Australia. These include 'illegal maritime arrival', 'unauthorised maritime
arrival', and 'transferee'.[3]

1.12
The term 'refugee' is defined in article 1 of the Refugee Convention
1951 to include a person who:

...owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable to,
or owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.[4]

1.13
An 'asylum seeker' is a person who seeks protection as a refugee, and
whose claim for such protection is still being assessed. As the Department of
Immigration and Border Protection (the department) explained to the committee,
'Not all asylum seekers are necessarily refugees, but all refugees have at some
point been asylum seekers'.[5]

1.14
Australia's RPCs were established for the purposes of holding individuals
in immigration detention while their claims for protection were processed,
pursuant to Australia's obligations under international law. As such, this
report will refer to individuals held in Nauru and PNG, or held there at any
time in the past, as either 'refugees' or 'asylum seekers'.

Report structure

1.15
The remainder of Chapter 1 will summarise developments relating to
matters associated with the RPCs.

1.16
Chapter 2 will set out the allegations of abuse, neglect and self-harm
among refugees and asylum seekers in Nauru and PNG.

1.17
Chapter 3 will analyse the factors which have contributed to the
allegations of abuse and self-harm being made, including concerns about the
support services available to individuals who allege that they have been
subject to abuse, neglect or self-harm. It will also address concerns about the
manner in which notifications of abuse and self-harm are investigated.

1.18
Chapter 4 will outline attempts by the Commonwealth Government to
negotiate third country resettlement of refugees and asylum seekers, and
additional measures which could be implemented to expedite this process.

1.19
Chapter 5 will analyse the public spending associated with the
administration of offshore processing of asylum seekers.

1.20
Chapter 6 will discuss Australia's obligations in relation to refugees
and asylum seekers in Nauru and PNG, including obligations under international
law.

1.21
Chapter 7 will set out the committee's conclusions and recommendations.

Background

Global refugee crisis

1.22
The world is in the grip of a global refugee crisis. It is estimated
that approximately 65 million people are displaced around the world,[6]
21.3 million of whom are refugees.[7]
The United Nations High Commissioner for Refugees (UNHCR) estimates that nearly
34,000 people are forcibly displaced every day as a result of conflict or
persecution.[8]

1.23
Australia processes claims for asylum via its humanitarian programme.[9]
The majority of offshore applicants are identified by the UNHCR as potential
applicants, and referred to Australia for consideration of their claim. From
2015-2016,
17,555 visas were granted under the humanitarian programme.[10]
Of these, 2,003 were granted to onshore applicants who were recognised as
refugees, 7,268 were 'Special Humanitarian Programme' visas, and 8,284 refugee
category visas. Of those visas granted to offshore applicants, 3,790 were
granted to individuals displaced by the conflicts in Syria and Iraq, as part of
the Government's commitment to an additional 12,000 Humanitarian Programme
places for such applicants.[11]

Australia's policy of offshore
processing

1.24
The history of Australian offshore processing has been outlined in previous
inquiries about these and related matters and therefore will not be restated
here.[12]
The Refugee Council of Australia (RCA) has also published a detailed timeline
of major events in the history of Australia's refugee and humanitarian
programme.[13]

The findings of previous inquiries

1.25
The findings of three recent Senate inquiries into related matters are
summarised below.

Incident at the Manus Island
Detention Centre from 16 February to 18 February 2014

1.26
In 2014 the Legal and Constitutional Affairs References Committee
conducted an inquiry into the incident at the Manus RPC in February that year
which resulted in the death of Mr Reza Berati.[14]
The committee examined and reported on a range of issues related to the governance
and management, legal obligations, physical conditions, refugee status
determination and resettlement arrangements at the Manus RPC.

unhygienic toilet and shower facilities in very poor condition,
many with moss and fungi on the walls;[16]

very long queues for meals, low quality food and regular cases of
diarrhoea and food poisoning;[17]

a very high demand for medical services generally, regular cases
of skin infections, widespread mental health problems including suicidal
ideation, and poor facilities for transferees who were mentally ill;[18]
and

a significant number of local service provider staff, and some
expatriate staff, were involved in violence against asylum seekers;[20]

detainees had not been given a clear pathway for the assessment
of their asylum claims, and this may have contributed to the violent riots
which took place in the Manus RPC in February 2014; [21]

conditions in the RPC were 'harsh and inhumane', and this was a
significant factor increasing the volatility in the centre;[22]

the Australian Government had failed in its duty to protect
asylum seekers (including Mr Barati) from harm;[23]

the Australian Government exercised 'effective control' over the
Manus RPC and the men held there, and even if it did not, Australia would still
be liable for breaches of international human rights law there under the
doctrine of joint liability;[24]
and

as the 'architect of the arrangements with PNG', the Australian
Government has a 'clear and compelling moral obligation' to ensure asylum
seekers are treated in accordance with international human rights law.[25]

1.29
In 2015, the Senate established the Select Committee into recent
allegations relating to conditions and circumstances at the Regional Processing
Centre in Nauru (select committee). The select committee's report was broad in
scope, covering a range of issues including questions of legal jurisdiction and
Australia's responsibilities, management and governance of the RPC, living
conditions, services and facilities, and the protection of detainees at the RPC
from abuse and harm.

1.30
The committee noted evidence of:

the Nauruan police forces' limited resources and capacity to
investigate serious allegations, and questionable independence and willingness
to investigate allegations against Nauruans charged with assaults on
non-Nauruans;[26]

concerns about the capacity of Nauru's judiciary to cope with the
workload generated by incidents at the RPC, and the independence of the
judiciary;[27]

a culture of fear among staff about disclosing anything that
happened at the RPC;[29]

a lack of communication between the department and asylum seekers
being resettled in the Nauruan community, and the granting of shorter term
Nauruan visas than those originally discussed;[30]

concerns with regards to mould, access to water, a lack of
privacy, the provision of clothing and footwear, toilet facilities, food,
education services, recreation activities, and access to medical care;[31]
and

sexual harassment, threats of sexual violence against young girls
and women, and sexual exploitation.[32]

1.31
The committee found that:

the conditions in the Nauru RPC at that time were 'not adequate,
appropriate or safe' for asylum seekers. The Commonwealth must accept ultimate
responsibility for this;[33]

there is a strong argument that Australia bears the primary
obligation to protect the human rights of asylum seekers under international
law;[34]

the committee had not be afforded full and transparent access to
information, and regarded that the Australian Government in particular had
sought to avoid full accountability to the Senate;[35]

the steps for refugee status determination in Nauru at that time
were unknown, and the processing time was lengthy;[36]
and

a pervasive culture of secrecy cloaked most of the department's
activities in relation to the RPC, and far greater transparency, scrutiny and
accountability was required.[37]

Conditions and treatment of asylum
seekers and refugees at the regional processing centres in the Republic of
Nauru and Papua New Guinea

1.32
In the 44th Parliament, this committee inquired into the conditions and
treatment of asylum seekers and refugees at the RPCs in Nauru and PNG. This
inquiry lapsed and an interim report was published in May 2016.

1.33
The report noted evidence:

of a generally poor standard of living at the RPCs including
substandard health facilities, and facilities which were hot, humid, dirty and
'prison-like', and lacked privacy;[38]

of incidents between June 2014 and July 2015, including 134
incidents of actual self-harm including some by children, 75 instances of the
use of force against asylum seekers, 26 major disturbances of various kinds, 34
instances of serious assault requiring medical treatment, and other incidents
including electrocution and disease outbreak;[39]

from submitters who believed that harsh and indefinite conditions
in RPCs represented a deliberate policy on the part of the Australian
Government to deter others from attempting to come to Australia by boat;[40]

of concern regarding the standard of education provided to
children on Nauru, including a lack of play and recreational activities;[42]

of concerns about lesbian, gay, bisexual and transgender (LGBT)
people held in RPCs, particularly noting that male homosexual conduct remained
a criminal offence in both Nauru and PNG, and severe discrimination in the RPCs
and host countries against LGBT people;[43]
and

of concerns about a lack of transparency and accountability with
regards to management and contracting at the RPCs,[44]
a climate of oppressive secrecy surrounding the operation of RPCs,[45]
and calls for independent oversight.[46]

Recent developments relating to this policy

1.34
On 26 April 2016 the Supreme Court of PNG held that detention of asylum
seekers at the Manus RPC was unconstitutional and illegal, and ordered that their
detention cease.[47]
The following day the Manus RPC was declared to be an 'open centre'.[48]
Three months later, on 17 August 2016, the Minister for Immigration and Border
Protection the Hon Peter Dutton MP was reported to have advised that the Manus
RPC would be closed, and that both countries would work towards the closure 'as
quickly as possible'.[49]
On 13 March 2017 it was reported that the Chief Justice of the PNG Supreme
Court, Sir Salamo Injia, found that the Manus RPC had in fact been 'closed',
and that the refugees and asylum seekers living within the RPC were 'now
accommodated at the naval base the centre was built on'.[50]
However, as at
31 January 2017 the department still listed the RPC as an operational RPC
facility housing 861 men.[51]
In addition, on 9 April 2017 the Government announced that the Manus RPC will
be closed by 31 October 2017.[52]

1.35
On 13 November 2016, the Australian Government announced that refugees
located on Manus Island and Nauru would be offered resettlement in the United
States of America (US) under a 'one off' arrangement.[53]
At the date of this report, no refugees in either Nauru or PNG have been
resettled in the USA. This announcement will be discussed further in Chapter 4
of this report.

1.36
On 13 September 2016 the Australian National Audit Office (ANAO)
released an audit report on the procurement of garrison support and welfare services
at Australia's offshore processing centres.[54]
On 17 January 2017 the ANAO released an audit report of the contract management
of those garrison support and welfare services.[55]
These two audit reports were extremely critical of both the procurement of services
at the RPCs, and the management of the contracts for those services. These
reports will be discussed further in Chapter 5 of this report.

1.37
A number of contractors engaged to provide services in Nauru and PNG
have announced that when their current contracts end they will not retender:

Broadspectrum has provided garrison and/or welfare services in
Nauru since September 2012, and in PNG since March 2014.[56]
On 20 April 2016, Broadspectrum was acquired by a Spanish company called Ferrovial,
which attained a majority shareholding in Broadspectrum. Ferrovial announced
that RPC services would not form part of its service offerings in the future.[57]
It stated that the services which Broadspectrum had been providing on Nauru and
Manus (garrison and support services) were not 'a core part of the valuation
and the acquisition rationale of the offer' and 'not a strategic activity in
Ferrovial's portfolio'.

Wilson Security is subcontracted by Broadspectrum to provide
security services in Nauru and PNG. On 1 September 2016, Wilson Security
announced that its contract with Broadspectrum would conclude at the same time
as Broadspectrum's head contract.[58]
Wilson Security also stated that it will 'not tender for any further offshore
detention services' and noted that the provision of security services at RPCs
is 'not in line with Wilson Security's long term strategic priorities'.

On 19 September 2016 it was reported that Connect Settlement
Services (CSS) would not reapply for its contract to provide settlement
services on Nauru once its existing contract expired on 7 December 2016.[59]

1.38
On 1 April 2017 it was reported that the company responsible for the
provision of medical services at both the Nauru and Manus RPCs, International
Health and Medical Services (IHMS), had been required to cease providing
services at the Manus RPC from midnight on 31 March 2017.[60]
It was reported that this was due to the staff members having been practicing
medicine without a licence from the PNG Medical Board. The Guardian Australia
later reported that IHMS had been replaced by a PNG company called Paradise,
which was providing only basic and emergency medical care, and that asylum
seekers and refugees with chronic conditions requiring medication had been
unable to access such medication during the changeover.[61]

1.39
It was further reported that IHMS had characterised this event as a
'temporary' stop in operations, and expressed a hope to resume services soon.
It was also reported that IHMS were concerned about having been targeted by the
local PNG healthcare sector for commercial reasons:

Overlaying the licensing issue, as a result of competing
commercial interests within the healthcare sector in PNG, IHMS has been the
target of multiple unfounded accusations including that IHMS has not complied
with PNG labour, immigration and taxation laws. IHMS provided the PNG
government all the information required to refute these allegations.[62]

1.40
On 7 April 2017, Mr Behrouz Boochani, a refugee on Manus Island, tweeted
that IHMS would be returning to Manus Island.[63]